A Comparative Analysis of Olga Tellis, Satrose Ayuma and Mitu-Bell
By Maryanne Muiruri and Dennis Juma, Advocate of the High Court and Managing Partner at Chege Kibathi & Company Advocates LLP
“A home is more than four walls and a roof. Sometimes, its most important feature is where it stands.”
The right to housing is not confined to the existence of a physical structure. Where a person lives may determine access to employment, education, healthcare, transport, social networks and essential services. Equally important is whether the housing itself is safe, habitable and consistent with human dignity.
This distinction is particularly significant when comparing Indian and Kenyan constitutional jurisprudence.
In Olga Tellis & Others v Bombay Municipal Corporation, the Supreme Court of India recognized that the right to life under Article 21 of the Indian Constitution includes the right to livelihood. The Court accepted that, for persons living on pavements and in informal settlements, location could be critical because removal from their place of residence could deprive them of access to employment and, consequently, their means of survival.
Kenyan jurisprudence has developed this principle further. Article 43(1)(b) of the Constitution expressly guarantees every person the right to accessible and adequate housing and to reasonable standards of sanitation. Decisions including Mitu-Bell Welfare Society v Kenya Airports Authority and Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others demonstrate that adequacy may encompass not only the physical structure but also location, habitability, services, security of tenure, sanitation and dignity.
The Kenyan position therefore moves beyond the question of whether a person has somewhere to live. It asks whether the resulting housing is constitutionally adequate.
- Olga Tellis: Location and the Right to Livelihood
Olga Tellis arose from the proposed eviction of pavement dwellers and other informal settlers in Bombay. The petitioners argued that their removal would deprive them of their livelihoods because they lived close to their places of employment.
The Supreme Court accepted the connection between residence and livelihood. It reasoned that, where employment depends on proximity to a particular location, eviction may directly interfere with the ability to earn a living and therefore implicate the right to life under Article 21.
The significance of the decision lies in its recognition that economic survival is often spatial. A person’s home is not merely a place of shelter; it may also be the point from which employment and other necessities of life are accessed.
However, Olga Tellis did not establish an absolute right to remain in a particular location. The Court recognised that the State could lawfully regulate public spaces and effect evictions, provided the applicable constitutional and legal requirements were observed.
Thus, location mattered principally because of its relationship with livelihood.
- Kenya: Location as Part of Adequate Housing
Kenya’s constitutional framework is more explicit.
Article 43(1)(b) expressly protects the right to accessible and adequate housing and to reasonable standards of sanitation. This right must also be understood alongside the constitutional guarantees of dignity, freedom and security of the person, property, fair administrative action, and the general protection of rights under Articles 20 to 23.
The result is a broader inquiry.
The question is not simply whether a person can be moved from one place to another. It is whether the proposed relocation leaves that person with housing that remains constitutionally adequate.
Location may therefore become relevant where relocation substantially affects access to:
- Employment and economic opportunities;
- Schools and educational institutions;
- Healthcare;
- Public transport;
- Markets and essential services;
- Water and sanitation;
- Established community networks; and
- Other conditions necessary for a dignified life.
A physically superior dwelling may therefore fail to constitute an adequate substitute if its location effectively disconnects residents from the essential social and economic structures upon which their lives depend.
- Satrose Ayuma: Adequate Housing Is More Than Shelter
The decision in Satrose Ayuma is important because it reinforces the substantive content of the right to adequate housing.
Adequate housing is not synonymous with a roof over one’s head. Its adequacy may depend on factors including security of tenure, affordability, accessibility, habitability, location, availability of services and cultural suitability.
Habitability is particularly significant.
Housing must provide reasonable protection against conditions that threaten health and safety, including structural hazards, exposure to the elements, overcrowding, inadequate ventilation, contamination and inadequate sanitation.
This approach shifts the constitutional inquiry from whether accommodation has been provided to whether the accommodation provided is genuinely adequate.
- Habitability, Sanitation and Dignity
The express constitutional protection of sanitation distinguishes the Kenyan framework from the reasoning in Olga Tellis.
Adequate housing cannot readily be separated from access to clean water, sanitation, drainage, waste disposal and other basic services. These are not merely matters of public policy; in appropriate circumstances, they form part of the conditions necessary for the enjoyment of constitutional rights.
Article 28, which protects human dignity, reinforces this position.
Housing affects physical security, privacy, family life, health and personal dignity. An eviction that leaves people without reasonable shelter, sanitation or protection from the elements may therefore raise issues extending beyond property rights to the constitutional protection of dignity.
- Mitu-Bell: A Rights-Based Approach to Eviction
Mitu-Bell Welfare Society v Kenya Airports Authority represents an important development in Kenyan constitutional housing jurisprudence.
The case concerned residents of Mitumba Village who faced eviction in connection with the development of airport infrastructure. The Supreme Court considered the interaction between property, development and the constitutional right to housing.
The decision demonstrates that the legitimacy of a public project does not, by itself, determine whether the manner of eviction is constitutionally permissible.
An eviction may require consideration of the human consequences for affected residents, including the availability of alternative accommodation and the protection of vulnerable persons.
Importantly, Article 43 does not convert occupation into ownership. A person without title does not thereby acquire a proprietary interest in public or private land. However, the absence of title does not necessarily extinguish that person’s constitutional rights.
The right to evict and the manner in which eviction is carried out are therefore distinct questions.
- The Proceduralisation of Eviction
Kenyan jurisprudence has increasingly emphasised that eviction is not merely a physical act of removing persons from land.
A constitutionally compliant eviction may require appropriate notice, identification of affected persons, consultation where applicable, protection of property and possessions, consideration of vulnerable groups and, in appropriate cases, provision for alternative accommodation or resettlement.
The underlying principle is straightforward: the enforcement of property or development rights must be reconciled with the constitutional rights of those affected.
This is particularly important in development-induced evictions involving roads, railways, airports, urban renewal and other public infrastructure projects.
- Development and the Limits of the Right to Housing
The right to adequate housing is not absolute.
Article 43 does not confer an unconditional entitlement to remain indefinitely on a particular parcel of land or to receive government-provided housing regardless of available resources and competing public interests.
Similarly, location does not create an indefeasible right to remain where occupation is unlawful or where legitimate public interests require relocation.
The constitutional question is instead whether the relocation process and its outcome are consistent with the rights of the affected persons.
Relevant considerations may include the purpose of the development, the availability of alternatives, the impact on livelihoods and essential services, the adequacy of any relocation arrangements and the circumstances of vulnerable residents.
- Location Is Not the Same as Tenure
One of the most important distinctions emerging from the Kenyan cases is the difference between place and legal title.
A person may have a strong social, economic and familial connection to a particular location without holding formal title to the land.
That connection does not necessarily create ownership. It may, however, be relevant to determining the constitutional consequences of relocation.
This is where the Kenyan approach moves beyond a narrower, property-centred analysis. The absence of title does not automatically mean the absence of constitutional protection.
- A Comparative Perspective
| Issue | India – Olga Tellis | Kenya – Post-2010 Jurisprudence |
| Constitutional basis | Article 21 – right to life | Article 43(1)(b) – adequate and accessible housing |
| Location | Important because of its connection to livelihood | May form part of the adequacy of housing |
| Livelihood | Central consideration | Relevant, alongside other housing considerations |
| Habitability | Not developed as a central component | Increasingly substantive |
| Sanitation | Not central to the decision | Expressly protected under Article 43 |
| Dignity | Implicit within the right to life | Expressly protected under Article 28 |
| Right to remain | No absolute right | No absolute right |
| Relocation | May be lawful, subject to constitutional requirements | Must be assessed against substantive and procedural housing rights |
| Remedies | Primarily focused on legality and procedure | Includes broader remedies, including alternative accommodation and structural relief in appropriate cases |
- The Broader Constitutional Significance
The progression from Olga Tellis to Satrose Ayuma and Mitu-Bell reflects a broader transformation in the constitutional understanding of housing.
Olga Tellis established an important proposition: place can determine livelihood, and livelihood can be integral to the right to life.
Kenyan jurisprudence has taken the inquiry further. It recognises that the adequacy of housing may depend on the quality and location of the place to which a person is relocated.
The constitutional analysis therefore increasingly encompasses the relationship between housing and employment, education, healthcare, transport, sanitation, safety and dignity.
This does not mean that every person has a constitutional right to remain in a particular neighbourhood or on particular land. Rather, it means that relocation cannot necessarily be assessed solely by comparing one physical structure with another.
The human consequences of relocation matter.
Conclusion
The comparative development is best captured by the distinction between place as a means of sustaining livelihood and place as an element of adequate housing.
In Olga Tellis, location was constitutionally significant because it sustained access to employment and, therefore, livelihood. In Kenyan jurisprudence, particularly following Satrose Ayuma and Mitu-Bell, location may additionally be relevant to whether housing itself is constitutionally adequate.
The same progression is evident in relation to habitability. While Olga Tellis was principally concerned with livelihood and the legality of eviction, the Kenyan framework more expressly engages with sanitation, safety, services, dignity and the quality of accommodation.
The emerging principle is therefore not that individuals possess an absolute right to remain wherever they live. Rather, lawful ownership, public development objectives or the power to evict do not bring the constitutional inquiry to an end.
Where eviction or relocation is contemplated, the question must also be whether the process respects co
Dennis Juma is the Managing Partner at Chege Kibathi and Company Advocates LLP responsible for the 
management of the Firm. He oversees the Litigation and Dispute Resolution Department as well as the Debt Collection Department. He also holds various certifications and training such as in Legal Compliance and Audit; Insolvency and Business Restructuring. He has experience spanning a decade in the legal world and is an astute professional with the unreserved ability to competently represent clients in complex cases of Litigation, Arbitration, and other forms of Alternative Dispute Resolution.
Maryanne Muiruri is an Advocate of the High Court of Kenya based in Nairobi, with
professional experience in commercial law, real estate, trusts and administration, and pension and wealth management.
